The opinion of the court was delivered by: COOPER
This is a purported class action by plaintiff Dale (1) for a declaratory judgment that section 102 of the Mental Hygiene Law, McKinney's Consol. Laws, c. 27 of the State of New York (formerly § 1374 of the Civil Practice Act), which provides a procedure for the appointment of a committee for a patient of a state mental institution, denies plaintiff due process and the equal protection of the laws and invades her right to privacy, (2) for an injunction restraining further enforcement, operation or execution of the alleged unconstitutional statute, (3) for a return to plaintiff of all her moneys had and received. Plaintiff also seeks preliminary injunctive relief pursuant to 28 U.S.C. § 2284.
She now moves for the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284 and for a temporary restraining order returning to her the net balance of her estate still in the hands of the committee. Applicant Escariz moves to intervene as a party plaintiff herein pursuant to Rule 24, F.R. Civ. P. Defendants move to dismiss the complaint pursuant to Rule 12(b)(1), (2) and (6), F.R. Civ. P.
Plaintiff was committed to Harlem Valley State Hospital, Wingdale, New York in 1952 by order of certification of the New York Supreme Court, Bronx County, as a person afflicted with mental disease to such an extent that for her own welfare or the welfare of others, or of the community, she required care and treatment pursuant to former § 74 of the Mental Hygiene Law (since repealed). At no time during her confinement did plaintiff invoke the review procedure provided by former § 76 of the Mental Hygiene Law (now § 74). She expressly declares that she does not contest the validity of her commitment.
While she was a patient therein, defendant Roberts (the hospital director) petitioned the same New York Supreme Court for an order pursuant to C.P.A. § 1374 appointing a committee to manage her personal and business affairs. The verified petition stated that plaintiff had been legally committed to and was then an inmate of the Harlem Valley State Hospital of which Dr. Roberts was director, that plaintiff was then of unsound mind and incompetent to manage her person or property, that she was widowed and without known kin, and set forth the nature and extent of her known property.
Defendants provide us with a certified copy of a return of service filed with the Bronx County Supreme Court on July 22, 1962 stating personal service of the Petition and Notice of Motion was made upon plaintiff Dale as well as upon Dr. Roberts. The Notice of Motion served upon plaintiff stated that the motion to appoint a committee would be heard in the Supreme Court, Bronx County, at 10:00 A.M. on July 24, 1962. Plaintiff's present complaint denies upon information and belief that plaintiff received such notice; no affidavit from plaintiff is submitted in support of that denial.
On July 24, 1962 the motion for appointment of a committee was granted by default in the court aforesaid on the basis of Dr. Roberts' petition. Defendant Hahn, now deceased, was appointed Committee of her person and property. The complaint alleges that Hahn, as plaintiff's committee, received approximately $9,283 for her account.
By order dated October 13, 1966 of the same court, Hahn was allowed to resign as Committee and move the judicial settlement of his account. A Guardian ad Litem, having been appointed by the Court on July 28, 1966 to protect the rights and interests of plaintiff on this accounting, filed a report and affidavit in her behalf in connection therewith. On April 10, 1967 the Court settled the final account of Hahn, discharged him as Committee and from any and all further liability once the payments directed by the Court were made, and ordered that defendant Pious be appointed Successor Committee of the person and property of plaintiff. The complaint alleges that Pious, as Successor Committee, received approximately $5,572 for plaintiff's account, representing the balance remaining after the disbursements ordered by the Court in the settlement of Hahn's account were made.
On April 18, 1967 plaintiff was discharged from Harlem Valley State Hospital. Thereafter, on motion of Pious and supporting affidavit of plaintiff, she was "declared competent to manage her person and her property" by order of the Supreme Court, Bronx County, dated December 13, 1968. This order authorized and directed Pious to file a final account of all of his proceedings from the date of his appointment and to move for the judicial settlement thereof within thirty days, unless he restored to plaintiff her property after deducting proper charges and obtain a receipt and release therefor, in which event an application could be made ex parte for his discharge.
Pious, although willing to return plaintiff's property, has been unsuccessful in his efforts to obtain a receipt and release. On August 11, 1969, long after she was released and declared competent, plaintiff commenced this action. She states "for the record" that Pious is not charged "with any impropriety or individual wrongdoing." See Letter of Bruce J. Ennis, Esq., January 29, 1970. The parties have agreed that Pious will proceed by April 6, 1970 to settle his account as plaintiff's committee in an appropriate state court to the end that the balance of her property still in the hands of the Committee will be restored to her as soon as possible. See Affidavit of Edward Pious, Esq., December 15, 1969, p. 4; Stipulation of the Parties, February 3, 1970, 3.
I Three-Judge Court Requirements
The single district judge before whom an application is made to convene a three-judge court must determine whether a substantial constitutional question has been raised with respect to the state statute, whether the complaint sets forth a basis for equitable relief and whether the other requirements for a three-judge court are met. See Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962); Ex Parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied 389 U.S. 1048, 88 S. Ct. 768, 19 L. Ed. 2d 840 (1968); American Commuters Assoc., Inc. v. Levitt, 405 F.2d 1148 (2d Cir. 1969). If plaintiff fails to carry her burden in this regard, a three-judge court must be denied.
A. Substantiality of the Constitutional Question
If the complaint fails to raise a substantial federal question with respect to a state statute, a three-judge court must be denied and the action dismissed. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). The Supreme Court has stated that "[the] lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." California Water Service Co. v. City of Redding, 304 U.S. 252, 255, 58 S. Ct. 865, 867, 82 L. Ed. 1323 (1938).
In rejecting the view "that, except 'in an open and shut case,' it is better to 'constitute a 3-Judge Court, and allow that court to determine initially' whether it should have been constituted," our circuit has stated:
"An occasional reversal because a court of appeals will disagree with respect to the substantiality of the question is far less wasteful of judicial resources. * * * the best course for this circuit is for single district judges to continue conscientiously to pass upon the substantiality of constitutional attacks on state statutes * * * and, where this court unanimously agrees that the attack is without merit, for us not to be finical on whether the lack of merit was obvious." Heaney et al. v. Allen et al., 425 F.2d 869, 872 (2d Cir, 1970) (citations omitted).
Plaintiff's contention that the appointment of a committee to manage property pursuant to the procedure provided by § 102 (and former § 1374 under which her committee was appointed) deprived her of the right to control her property without due process of law, we find to be without substantial merit.
Notice and a judicial hearing before a court of law affording her an opportunity to be heard (she being a widow and the only known interested party) satisfies the essential requisites of due process and fundamental fairness.
See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969) (prejudgment attachment); Mullane v. Central Hanover Bank & Trust Co., Trustee, 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950); Simon v. Craft, 182 U.S. 427, 21 S. Ct. 836, 45 L. Ed. 1165 (1901) (commitment to a mental institution); Bradford Audio Corp. v. Pious, 392 ...